These General Terms and Conditions of Delivery apply to all contracts between Satelco AG, Au/Wädenswil (hereinafter: Satelco) and the Customer as well as all other agreements made within the scope of the business relationship. The General Terms and Conditions of the Customer explicitly shall not become subject matter of the contract, even if not explicitly objected to by Satelco. In case the Customer objects to the following General Terms and Conditions of Delivery, he shall inform Satelco accordingly in writing in advance.
2. Terms of payment and prices
All invoices from Satelco are payable within 30 days of date of the invoice. The determining factor is the date of receipt of payment by Satelco. In case of late payment, Satelco shall be entitled to withhold further deliveries and services. In case of late payment by the Customer, Satelco shall be entitled to make late payment charges at a rate of 5%. All prices are exclusive of VAT. Satelco shall be entitled to make partial deliveries. Satelco reserves the right to request down payments for larger projects and wholesale transactions. Unless otherwise agreed, they shall be charged proportionately with 40% at the start of the project, 30% and 20% during the project and 10% upon project completion.
3. Deliveries and shipment
All offers from Satelco may be subject to change. Deliveries are only assured while stocks last. All delivery dates quoted by Satelco are by definition non-binding, unless a delivery date has been explicitly and bindingly agreed upon in writing. If, after placing an order, a Customer requests changes or amendments to the order or if other circumstances not attributable to us arise which prevent Satelco from meeting the delivery deadlines, the delivery date may be delayed for a reasonable period of time. If Satelco is unable to fulfil its obligations under the contract in due time, e.g. due to procurement, production or delivery difficulties in its plant or at its suppliers, the general principles of law shall apply, provided that after one month has expired the Customer is entitled to set a grace period of 6 weeks. If non-compliance with a binding delivery date is demonstrably due to mobilis¬ation, war, riots, strikes, lock-outs or other circumstances for which Satelco is not responsible according to the general principles of law, the delivery period shall be extended by a reasonable period of time. The Customer shall be entitled to withdraw from the contract if he sets Satelco an appropriate grace period after the extended period has expired and Satelco does not fulfil its obligations within this grace period. The cancellation of the contract must be in writing. If Satelco is unable to fulfil the contract completely or partially for the above mentioned reasons, it shall be released from its obligation to deliver.
As a matter of principle, the costs for shipment and transport insurance must be paid by the customer, Satelco shall choose the dispatch route and type of dispatch at its own discretion. The Customer agrees to check the goods promptly on arrival and immediately notify Satelco in writing of any visible transport damage as well as any damage to the packaging. The same shall also apply to any hidden damage. If Satelco loses its claims against the insurance company or the supplier due to omission of this responsibility, the Customer shall be liable for all costs incurred due to this breach of obligation. The risk shall pass on to the customer when the goods leave the plant or warehouse of Satelco.
4. Retention of title
The delivered goods shall be considered Satelco’s property until payment in full of all amounts receivable by Satelco from the business relationship with the Customer has been made. The Customer is obliged to take out proper insurance for the items under retention of title of Satelco (i.e. covering burglary, fire, water and electronic equipment insurance) and provide evidence of such insurance at Satelco’s request. In the event of damage, the Customer’s insurance claim shall be considered as assigned to Satelco to the extent the general terms and conditions of insurance allow this. The Customer shall not be entitled to resell the goods that are under retention of title. If the goods have been seized or sequestered, the Customer shall promptly notify Satelco in writing and shall immediately duly inform third parties of Satelco’s reservation of title in suitable form. Should the Customer, however, sell the delivered items having obtained the prior written consent of Satelco, the Customer shall assign any claims against his customers to Satelco at the time of closing the contract. The Customer shall undertake to submit to Satelco all information required for the enforcement of these rights and provide the necessary cooperation.
5. Limitation of liability
In as far as no direct personal injuries or material damage are concerned, Satelco shall only be liable for damages of up to CHF 25’000.-. Satelco shall not be liable for loss of profit, loss of savings or indirect damage and/or consequential damage. This limitation of liability shall not apply to damage caused by deliberate intent, gross negligence or the absence of guaranteed properties. Satelco shall not be liable for data recovery, unless it is attributable to Satelco’s gross negligence or deliberate intent and the Customer has provided appropriate, state-of-the-art security measures so that the data can be retrived with a reasonable effort.
Satelco guarantees that the goods have the properties warranted in the contract and are free of defects that may result in the reduction or complete loss of its value or suitability for normal or contractually specified use. Any insubstantial loss in value or suitability shall not be taken into account. The warranty period shall be 12 months as of the date of delivery. The Customer shall notify Satelco promptly in writing of any defects arising during the warranty period.
The warranty does not include the remedying of errors caused by normal wear, external influences or user errors.
The warranty shall be considered void if the Customer modifies devices, elements or auxiliary equipment or has them modified by third parties without the consent of Satelco, unless the Customer can prove that such modific¬ations caused none of the said defects, neither partially nor completely, and that the modification does not com¬plicate the remedying of the defect.
In the context of its warranty obligation, Satelco may choose to repair or replace defective devices, elements, auxiliary equipment or parts at its own discretion. The Customer shall remove programs prior to a replacement as required (including its application programs, data, data carriers, modifications and extensions). The Customer agrees to grant Satelco the required time and opportunity to perform the remedial actions. If Satelco is not able to remedy major defects within 6 months of receipt of a correct notice of defect, the Customer shall be entitled to set a reasonable period of grace and state that he will reject the remedy of defect upon expiry of this time period. After expiry of this grace period the Customer shall be entitled to a rebate or a reduction in price if the defect has not be remedied within this period of grace. Details in the manual/documentation and/or advertising material referring to the possibility to enhance a product or available auxiliary equipment are non-binding, in particular because the products are subject to on-going development and details may also relate to future developments.
Satelco guarantees, for a period of 12 months from the day of delivery, that the basic software delivered is free of material and manufacturing defect and works correctly as described in the accompanying product manual. The warranty shall be limited to these services. The Customer is aware that according to the current state of technology errors in programs cannot be excluded. In the event of a justified notice of complaint, Satelco reserves the right to perform these remedies in all and in the event of definite failure of remedy grant the Customer the right at the Customer’s discretion to revoke the contract or reduce the purchase price. The Customer shall have a right to revoke the contract or reduce the purchase price only if an error in the program should prove to be substantial and important for the overall scope of the performance and the error cannot be fixed otherwise by the software. Any other warranty, in particular for the suitability of the software for the Customer’s purpose as well as for direct or indirect damage (e.g. loss of profit, business interruption) and the loss of data or damage in connection with the restoration of lost data, shall be expressly excluded, unless it can be shown that Satelco and its employees acted with deliberate intent or gross negligence. Satelco reserves the right to modify programs after they have been delivered, in order to improve the performance of the program and as long as they do not affect the remaining software. Details in the manual/documentation and/or advertising materials referring to the possibility to enhance a product or available auxiliary equipment are non-binding, in particular because the products are subject to continuous adaptation and the details may also refer to future developments.
Satelco and the Customer mutually undertake to keep all business and trade secrets of the other party secret for an indefinite period of time and not pass them on to third parties or use them in any way. Documents, drawings and other information received by the other contract party in the course of the business relationship may only be used within the scope of the corresponding contract purpose.
Should any individual provision of these General Terms and Conditions be or become invalid, either in part or in full, this will not affect the validity of the other provisions. The invalid provision will be replaced by a ruling that is as close as possible in purpose to the invalid provision.
There are no ancillary agreements. Amendments to the contract shall only be deemed to be valid after being are confirmed in writing.
The Customer shall only be entitled to transfer his rights from a business relationship with Satelco with Satelco’s written consent. The Customer may only off set the purchase price claim against undisputed counterclaims or counterclaims recognised by declaratory judgement.
The place of jurisdiction shall be, in as far as legally permissible, at the location of Satelco (registered Head Office) in Au/Wädenswil, Switzerland. The contract shall be governed by Swiss law.